Bill C-30, An Act to amend the Canadian Environmental Protection Act, 1999,
the Energy Efficiency Act and the Motor Vehicle Fuel Consumption Standards
Act
(Canada’s Clean Air Act), was introduced in the House of Commons and
given first reading on 19 October 2006. This bill addresses air pollution
as well as greenhouse gas emissions.

Air pollutants associated with smog (ozone and particulate matter as well
as substances that can form ozone) had been placed on Schedule 1 of the
Canadian Environmental Protection Act, 1999 (CEPA 1999) in order to give
the government the powers to use regulations and other instruments available
under CEPA 1999 to control these substances. Schedule 1 of CEPA 1999
contains the list of substances defined as “toxic” under section
64 of the Act.

During the 38th Parliament, the government had also placed greenhouse
gases on Schedule 1 of CEPA 1999 in order, most significantly, to move toward
the use of certain portions of the Act to regulate emissions of these substances
and to create an emissions trading scheme for significant industrial sources
of greenhouse gases (large final emitters). This was done to help
Canada meet its Kyoto Protocol obligations to reduce greenhouse gas emissions
to, on average, 6% below 1990 levels during the period 2008-2012. During
the 39th Parliament, however, the government repudiated the Kyoto targets,
stating that Canada could not meet them. Bill C-30 seeks to reduce
the health and environmental risks associated with air pollutants and greenhouse
gases.

Bill C-30 was originally introduced in the House of Commons on 19 October
2006. Two days after it was tabled, the government published a Notice
of intent to develop and implement regulations and other measures to reduce
air emissions. The Notice set out the government’s intention
to develop and implement a number of regulations under CEPA 1999 and to
address air pollutants and greenhouse gases using the amendments put forward
in
Bill C-30. Under this first-reading version of the bill, no mention
was made of the Kyoto Protocol. According to the Notice of Intent,
firm limits would not be set on greenhouse gas emissions until 2020 or 2025,
and emissions regulations on large final emitters would not take effect
until 2010.

The bill as it was originally drafted was rejected by all opposition parties
and was therefore not approved in substance by the House of Commons. By
agreement, it was referred to the Legislative Committee on Bill C-30 before
the second-reading stage. This allowed the Committee greater latitude
in amending the bill than would otherwise have been the case.

Bill C-30, as amended, reflects revisions made to the substance of the
bill. Consistent
with the first-reading version, it addresses air pollution and greenhouse
gas emissions. However, the focus of the bill has been reoriented
to emphasize action to fulfil Canada’s international obligations to
reduce greenhouse gas emissions.

Description
and Analysis

Bill C-30 amends three separate federal Acts: the Canadian Environmental
Protection Act, 1999,(1) the Energy
Efficiency Act,(2)
and the Motor Vehicle Fuel Consumption Standards Act,(3)
the last of which is not in force. Accordingly, the bill is divided
into
three parts, with each part addressing amendments to one of the three Acts.

Clause 1 establishes the bill’s short title as “Canada’s
Clean Air and Climate Change Act.” However, various other parts
of the bill still refer to its original short title, “Canada’s
Clean Air Act.”

Most of Bill C-30 is made up of amendments to the Canadian Environmental
Protection Act, 1999.

1. Clauses
2 and 3 – Preamble and Definitions

Clause 2 adds new paragraphs to the preamble of CEPA 1999. Six recitals,
some of which overlap with the subject matter of existing paragraphs, are
inserted before the beginning of the existing preamble. They concern:

a commitment to a “national carbon budget”;

a recognition that air pollution and greenhouse gases present a risk of
national and international concern to the environment and health that cannot
be contained within geographic boundaries;

a recognition that air pollution and greenhouse gases are matters of shared
federal–provincial/ territorial jurisdiction within Canada;

a recognition that climate change “constitutes one of the most serious
threats to humanity and to Canada, and poses major risks not only to the
environment and the economy, but above all to the health and safety of all
people”;

an acknowledgement of the government’s “undeniable responsibility” to
respond to climate change, in view of both Canada’s relative wealth
and the effects of climate change already evident in Canada;

a statement of the fact that Canada has signed the United Nations Framework
Convention on Climate Change and ratified its Kyoto Protocol, and of Canada’s
emission reduction target under that Protocol.

Finally, a paragraph is added that states that the federal regulatory system
for toxic substances should be designed both to minimize risks and to encourage
the use of less hazardous or non-hazardous substitutes. This paragraph
replaces an existing paragraph of the preamble to CEPA 1999, which relates
to the pursuit of the “highest level of environmental quality” and
of sustainable development, in cooperation with the provinces, territories,
and Aboriginal peoples.

Clause 3 introduces and defines various terms. The word “air” is
defined to clarify that it includes “indoor air.” “Air
pollutant” and “greenhouse gas” are subsets of substances
that also appear on Schedule 1 to CEPA 1999 (the List of Toxic Substances),
as well as “any other prescribed substance” for either category.

“Air pollutant” includes particulate matter (less than or
equal to 10 microns), ozone, sulphur dioxide, nitric oxide, volatile organic
compounds (except those listed
in a proposed Schedule 3.1 that was included in the first-reading version
of Bill C-30 and would have corresponded to the exceptions currently set
out in Schedule 1 of the Act), gaseous ammonia and mercury. “Greenhouse
gas” includes carbon dioxide, methane, nitrous oxide, certain hydrofluorocarbons,
certain perfluorocarbons and sulphur hexafluoride.

Other new terms relate to the carbon budget and emission trading system
that is to be established under sections of CEPA 1999 enacted by Bill C-30. “Carbon
credit,”“carbon permit,” “domestic offset system,” and “sectoral
carbon budget” all refer to instruments issued or set under specified
new sections of the Act. “Carbon price” is defined as
a dollar value per tonne of carbon dioxide equivalent, and is set at $20
in 2008, $25 in 2009 and 2010, $30 in 2011 and 2012, and either to market
value or to a prescribed amount of at least $30 thereafter.

Finally, Clause 3 adds that “for the purposes of this Act, a product
that may release a substance, including an air pollutant or greenhouse gas,
means a product that may do so during a use for which the product was intended.”

Clause 5 amends section 10 of the Act with regard to equivalency provisions.
Some of the changes are relatively minor; references are made to new sections
of the Act created by the bill, and the term “Minister” is
changed to “Ministers” to reflect the sharing of responsibilities
by the Minister of the Environment and the Minister of Health.

More notably, clause 5 alters the text in subsection 10(3) of the Act. The
Act allows the use of equivalency agreements where, by Cabinet decision,
a regulation under CEPA 1999 is declared not to apply in a province, a territory
or an area under the jurisdiction of an Aboriginal government that has equivalent
legislative provisions. The equivalent law or regulation need not
use the same wording as the CEPA 1999 regulation, but must have the same
effect. Bill C-30 makes this explicit by specifying that the effects
of the other government’s provisions must

demonstrably provide an
equivalent or superior level of protection of the environment and human
health based on, amongst other factors, the quantifiable effects of the
regulation on the environment and human health and the effective enforcement
and compliance of the federal regulation.

In addition, clause 5 creates a
new requirement that an equivalency agreement must include a method to determine
whether its terms are being fully met, and eliminates the five-year limitation
period for an equivalency agreement previously found in subsection 10(8),
replacing that provision with the requirement to adhere to “the time
that is specified in the agreement.”
Moreover, clause 5 adds that the Governor in Council may make regulations
respecting the circumstances in which, and the conditions under which, equivalency
agreements can be entered into. This is an additional power to be
given to the federal Cabinet that is not present in the current Act.

3. Clauses 6-17 – Amendments
to Parts 3-4, CEPA 1999

Clause 6 amends the environmental data and research aspects of the Act.
A new provision added after subsection 44(4) states: “The Ministers
may conduct research and studies relating to the effectiveness of mitigation
and control technologies and techniques related to pollution prevention,
air pollutants and greenhouse gases.” Interestingly, this is
a new and discretionary power given to the Ministers. It enables
them to study the effectiveness of such technologies and techniques if they
so choose, but does not compel such action. Other aspects of section
44 oblige the Ministers to conduct research and studies on pollution prevention
(including control and abatement of pollution) and hormone-disrupting substances
and to formulate plans for pollution prevention.

Clause 7, which replaces paragraph 45(a) of the Act, requires
the Minister of Health to conduct research and studies on: (1) the role
of substances or pollution (new term added) in causing ill health;
(2) the human health effects of exposure to substances or pollution as evidenced
by the monitoring of biomarkers; and (3) mitigation and control technologies
and techniques related to pollution prevention. Notably, the Minister
of Health has no discretion in this regard but must conduct these
studies, whereas under new section 44(5) the Ministers may study
the effectiveness of mitigation and control measures.

Clause 8 makes two amendments to section 46 of the Act, which currently
permits the Minister of the Environment to issue notices requiring information
about substances, nutrients or fuels for the purpose of conducting research,
creating an inventory of data, formulating objectives and codes of practice,
issuing guidelines, or assessing or reporting on the state of the environment. Clause
8(1) makes a technical amendment to subsection 46(1) of the Act, listing
fuels separately from other substances or activities that may contribute
significantly to air pollution.

Clause 8(2) amends section 46 to permit such notices issued by the Minister
to require independent verification of the information provided.

Clause 8.1 inserts a new section 53.1 related to information gathering.
The new section grants the Minister the authority to designate a region
as a “significant area”
if the Minister believes either that a region is particularly vulnerable
to the effects of toxic substances, or that a “significant volume” of
toxic substances is being released there.
The Minister may subsequently publish a notice requiring, with respect to
a designated significant area or any other area, the submission of information
from specified persons “for the purpose of learning more about” toxic releases in that
area. The Minister may also “identify priorities for research in
order to reduce those toxic substances” (i.e., those being released
in the area).

The current section 46 gives the Minister fairly broad powers to require
information from specified persons, while this new section puts emphasis
on the need for information on specified areas of concern.

Information submitted under section 53.1 is to be published in the
National Pollutant Release Inventory and is subject to the various sections
of the Act that relate to the Inventory and matters of confidentiality.

Clause 9 clarifies the wording of the French text of subsection 54(4)
of the Act.

Clause 10.1 adds a new section 63.1 to the end of Part 4 of the Act,
Pollution Prevention. New subsection 63.1(1) requires the Minister
to commence negotiations, within 90 days of the section coming into force,
for the purpose of “creating or designating”
an independent agency to be known as the Green Investment Bank of Canada, “which
is to be responsible for monitoring and regulating the greenhouse gas emissions
of large industrial emitters.”

The negotiations are to include representatives of provincial and territorial
governments, “members of aboriginal, Métis and Inuit communities,” and
representatives of “relevant private sector companies and non-governmental
organizations.” Relative to other sections of CEPA 1999, the
specification of groups to be consulted is unusual in that it requires,
rather than merely permits, negotiations with private companies
and non-governmental organizations, and also in that it refers to Aboriginal,
Métis and Inuit “communities” rather than to Aboriginal “governments” (which
have established self-governance agreements with the federal government).

Subsection 63.1(2) outlines in detail the nature and proposed powers and
purposes of the agency that the Minister and his or her provincial counterparts
are obliged to consider in negotiations, without specifying how other groups
outlined in 63.1(1) are to be involved.

Under subsection 63.1(3), the Minister is required to table in both Houses
of Parliament reports on the progress of these negotiations every six months,
starting from when the section comes into force and continuing until negotiations
are concluded.

Clause 10.2 inserts a new section 68.1. Subsection 68.1(1) obliges
the Minister to require, within five years of the coming into force of Bill
C-30, an assessment of all known and suspected carcinogens identified by
the International Agency for Research on Cancer (aside from those already
slated for assessment in the Domestic Substance List of CEPA 1999) along
with an action plan to find non-hazardous substitutes. The same obligations
apply to other “substances of concern” as identified by the
Minister. Subsection 68.1(2) specifies that

Where a substance is slated for safe substitution, that substance
shall be phased out of use within ten years after this section comes
into force.

Clauses 11 and 12 amend section 69(2.1) and paragraphs 71(1)(a)
and (b)
of CEPA 1999 to provide that either Minister may publish a notice in the Canada
Gazette requiring information, sampling or testing.

Clause 12(1) also makes a substantive amendment to paragraph 71(1)(c)
with respect to notices requiring people involved in the importation or
manufacturing of certain substances to conduct toxicological or other tests
and to submit the results to the Minister.
This amendment broadens the scope of substances subject to such tests from
any product “containing the substance” to any product “that
contains or may release into the environment” the substance. This
type of amendment is repeated in many clauses throughout the Bill.

Clause 12(3) further amends section 71 by adding an additional subsection
(2.1) concerning the contents of a notice: a notice sent under paragraph
71(1)(c) may specify the methods, test procedures and laboratory
practices to be followed in the required sampling, analysis, measurement,
monitoring or quantification of a substance.

Clause 14 amends section 93 of the Act, which sets out the power of the
federal Cabinet to make regulations with respect to substances specified
on the List of Toxic Substances in Schedule 1. This clause broadens
the scope of paragraph 93(1)(f) to include “the purposes
for which the substance or a product that contains or may release it
into the environment may be imported, manufactured, processed, used,
offered for sale or sold” (new text emphasized);
and (g) “the manner in which and conditions under which the
substance or a product that contains or may release it into the environment may
be imported, manufactured, processed or used” (new text emphasized).

This enhanced scope – from substances or products containing the
substance
to those that contain or may release a substance into the environment – is
continued in paragraphs 93(1)(l) to (r) of the Act under
clause 14(2), and also in section 99 under clause 17.

Finally, a new paragraph 93(1)(x.1) is added by clause 14(3), granting
the Governor in Council the power to make regulations respecting the monitoring
of a substance
and the reporting to either Minister of the environmental and health effects
of the release of
a substance.

Clause 14.1 creates new section 94.1, which obliges the Governor in Council
to create regulations related to the creation of a greenhouse gas emissions
trading scheme for industry.

Subsection 94.1(1) requires the Governor in Council to make regulations
to establish: (a) a greenhouse gas emissions trading system,
which would include the use of tradable carbon permits for releases of greenhouse
gases by large industrial emitters;
and (b) a domestic offset system,(4)
which would include the use of tradable carbon credits for “incremental
and verifiable annual greenhouse gas emission reductions.”

Subsection 94.1(2) grants additional, optional powers to make regulations
relating to carbon permits and carbon credits in order to specify who may
own such permits or credits,
to prescribe rules and procedures for trading, to link the trading system
to foreign or international trading systems (provided that those systems
are compliant with the Kyoto Protocol),
and to prescribe the “carbon price” for 2013 or later years. This
price must be equal to or greater than $30, taking into consideration foreign
and international trading systems.

Subsection 94.1(3) requires that, if regulations are made to link the
domestic trading systems to international or foreign systems, those regulations
must prohibit the use of “prescribed hot air credits”(5)
and also ensure that up until at least 2010, no large emitter may offset
more than 25% of their “individual carbon deficit” with credits
from foreign and international trading systems.

Subsection 94.1(4) specifies that, as an alternative to setting the carbon
price by means of regulation, the Governor in Council may limit the issue
of carbon credits in order to maintain a market price of not less than $30.

Section 95 of CEPA 1999 concerns actions to be taken in light of the actual
or likely release into the environment of a listed toxic substance.(6) Subsection
95(7) provides an enforcement officer or other authorized person with right
of access to “any place or property” where such a release occurs
or is likely to occur. Clause 15 limits this power to include access
to property where a release occurs or is likely to occur, or that is “reasonably
suspected to be affected by the release.”

5. Clause
18 – New Parts 5.1, 5.1.1 and 5.2

Clause 18 introduces a substantive amendment to the Act. This clause
adds
three new parts to CEPA 1999: Part 5.1 (section 103.01 to section
103.05) on “Climate Change Action,” Part 5.1.1 (section 103.051)
on “Greenhouse Gases” and Part 5.2 (sections 103.06 and 103.07)
on “Ambient Air Quality Standards and Emission Standards.”

a. Clause
18 – New Part 5.1

The purpose of new Part 5.1 (proposed section 103.01) is to “reduce
Canada’s greenhouse gas emissions to below current and historical
levels in order to protect the environment and the well-being of all Canadians,
especially the vulnerable members of society and Canadians living in the
North.”

New section 103.02 defines “carbon budgets,” which must be
determined by the Minister and published at least six months before a budget
applies.

Subsection 103.02(1) defines the “national carbon budget” as
a fixed value of greenhouse gas emissions for a given year. For 2008
to 2012, this value is set at Canada’s 1990 emission levels less 6%
(essentially, Canada’s Kyoto Protocol commitment). For all years
from 2013 to 2050, the budget is to be determined by the Minister, but the
budget for each year is to be less than for the last. For the years
2020 and 2035 it is to be at least 20% and 35% below 1990 levels respectively,
and for 2050 it is to be between 60% and 80% below 1990 levels.

Subsection 103.02(2) defines “sectoral carbon budgets” as portions
of the national budget determined to be “appropriate” by the
Minister for groups of persons considered to be “responsible for a
large portion” of Canada’s emissions.

For each “large industrial emitter” and for anyone else considered
to be “responsible for a portion” of Canada’s emissions,
subsection 103.02(3) defines “individual carbon budgets” as
portions of either a sectoral or the national budget. The individual
budgets must take into account: early action (between 1990 and the
coming into force of this section)
to reduce greenhouse gas emissions; the potential for emitters to transfer
permits between facilities and to trade permits and offsets; and “fair
treatment” for emitters whose rate of economic growth differs from
that of average sectoral growth.

Subsection 103.02(5) obliges the Minister to make regulations to determine
the method of calculating “individual carbon deficits,” “based
on” the amount of greenhouse gases produced in excess of an emitter’s
individual budget.

Under subsection 103.02(6) the Minister must issue a carbon permit equivalent
to an emitter’s carbon budget where required under the trading scheme
established under
section 94.1(1)(a).

New Sections 103.03 and 103.04 relate to Climate Change Plans. Section
103.03 requires the Minister to prepare a Climate Change Plan on or before
31 May of each year
from 2013 to 2050. The Plan is to be tabled at the latest three sitting
days after this date.

The Plan must include a description of measures taken under CEPA 1999
and any other Act to ensure that Canada’s domestic greenhouse gas emissions
are at or below the level set by the national carbon budget. Sections
103.03(1)(a) outlines measures that must be included in the Plan. Subsection
(b) requires that the date by which these measures are to take
effect, along with the measured or expected emissions reduction to be achieved,
are included in the Plan.

New Section 103.04 obliges the Minister to develop, in consultation with
other government bodies, a “reliable methodology” for estimating
and auditing anthropogenic greenhouse gas emissions for large emitters,
economic sectors and “Canada as a whole” within six months
of the section coming into force.

The final section of new Part 5.1, section 103.05, relates to the “large
industrial emitters.” These persons are designated by the Minister,
in consultation with the Governor in Council, as those considered “particularly
responsible for a large portion of Canada’s
greenhouse gas emissions, namely”: (a) persons involved
in electricity generation, (b) persons in the upstream oil and
gas sector, and (c) persons in energy-intensive industries, including
petroleum refineries and natural gas distributors. Under section 103.05(2)
the budgets for large final emitters are to be set so that the sum of the
budgets for industries or sectors identified in subsection (1) “for
each year from 2008 to 2012, shall equal the emissions level for the sector
in 1990 less 6%.”

b. Clause
18 – New Part 5.1.1

New Part 5.1.1, “Greenhouse Gases,” establishes a “territorial
approach”
for greenhouse gases similar to the equivalency agreement provisions set
out in section 10 for other parts of CEPA 1999. On the recommendation
of the Ministers, the Governor in Council may order that provisions of an
Act or regulation relating to greenhouse gases do not apply within the jurisdiction
of another government where there already exist legal provisions “the
effect of which is equivalent to the reductions required by the national
carbon budget”
and provisions relating to citizen-initiated environmental protection.

The determination and publication of the necessary decision regarding
the equivalent effect of provisions is to be undertaken by the Green Investment
Bank of Canada on the request of a province. The Bank does not as
yet exist, but its creation would be the subject of negotiations under section
63.1 should Bill C-30 come into force. The Bank may also revoke the
notice, and the Governor in Council consequently may revoke the order, either
if the conditions for the notice no longer exist or “on request from
one of the parties to the agreement.”

c. Clause
18 – New Part 5.2

The purpose of new Part 5.2 is to “protect the health of Canadians
and improve the environment by addressing the anthropogenic deterioration
of air quality.”

Proposed new section 103.07 concerns ambient air quality standards and
air emission standards. Ambient air quality standards must be issued and
published by the Minister for each air pollutant within six months of the
coming into force of this section. For air emissions standards, the
Minister is required within one year to divide the country into geographical
zones and to issue standards for each zone.

The air emission standards are to apply to “each industrial emissions
facility”
in any zone where the corresponding air quality standard is not met over
a six-month period, although temporary exceptions may be granted by the
Minister if meeting the standard would result in “severe economic
hardship.”

The Minister is required to review both types of standards at least every
five years “to ensure their consistency with best practices and international
standards.” Furthermore, the Minister is required to table an
annual report to Parliament on air pollution and air quality. This
report must address the attainment of the ambient air quality standards
and air emission standards required under proposed subsections 103.07(1)
and (2), as well as the effectiveness of measures taken by governments to
achieve those objectives, and measures the Minister will take to assist
in achieving them.

6. Clauses
19-23 – Part 7, Division 4, “Fuels”

In clauses 19 to 23, Bill C-30 amends Division 4 of Part 7 of the Act, “Controlling
Pollution and Managing Wastes.” Division 4 is entitled “Fuels.”

Clause 19 adds new section 138.1, which grants the power to the Minister
of Health to send a Notice requiring information for the purpose of assessing
whether or how to control a fuel or an element, component or additive in
a fuel. This new section describes the kind of information the Minister
of Health may require in a Notice and the manner in which the information
is to be supplied. Any person required to provide the Minister with
information must then keep that information for seven years. (This
is four years longer than any other information retention requirement in
the existing Act.)

Clause 20 amends the exceptions to the prohibition against producing,
importing or selling a fuel that does not meet the requirements prescribed
in section 139. Revised paragraphs 139(2)(b) to (d)
amend exceptions to the prohibition, in some cases narrowing the provision
and in others broadening it. Paragraph 139(2)(b) is amended
to make an exception for exported fuel subject to regulations. The
amendment to paragraph 139(2)(c) expands the exception it provides
to cover fuel that is produced or imported (currently the subsection covers
only fuel that is imported) provided it meets the requirements of subsection
139(1) by the time it is used or sold. A new paragraph (e)
stipulates that, subject to the regulations, the prohibition does not apply
if the amount produced or imported is “less than 400 cubic meters
per year.”

Clause 21 amends the regulation-making power of the federal Cabinet in
section 140 to include regulations concerning blended fuels (proposed new
paragraphs 140(1)(c.1),
(e) and (g)), to include “or any additive contained
in the fuel” under the power to make regulations concerning “the
adverse effects from the use of the fuel … on the environment,
on human life or health, on combustion technology and on emission control
equipment” (proposed subparagraph 140(1)(g)(iii)).

Clause 21(6) replaces subsection 140(3) of the Act, which currently permits
regulations that distinguish among fuels according to their commercial designation,
source, physical or chemical properties, class, conditions of use, or place
or time of year of use.
The new subsection 140(3) provides that regulations under subsection 140(1)
may vary the operation of paragraphs 139(2)(b) to (e),
and may exempt fuels on the basis of their use or conditions of use.

Clause 23 amends the wording of section 146 of CEPA 1999, concerning variations
in fuels, with the following:

A regulation made under this Division may distinguish among fuels
according to their manufacturing process, commercial designation, feedstocks,
source, physical or chemical properties, class, use, conditions
of use or place or time of year of use. [new text emphasized]

Clause 24 adds a new reference to paragraph (b) of subsection 103.07(2)
(air emission standards) in section 195 of the Act. Clause 25 amends
the requirements for environmental emergency plans in paragraph 199(1)(a)
of the Act to include plans for substances listed as air pollutants or greenhouse
gases, in addition to the toxic substances listed in Schedule 1.

8. Clauses
26-31 – Part 10, Enforcement

Clause 26 amends paragraphs 218(1)(a) and (b). It
permits an enforcement officer to enter and inspect any place where he or
she has reasonable grounds to believe may be found (a) a substance
to which this Act applies or a product that contains or may release such
a substance into the environment, or where (b) a fuel
to which this Act applies is being or has been produced or blended (new
text emphasized).

Clause 27 amends the “Offences and Punishment” part of the
Act by adding new subsection 272(2.1), which sets out the offence of and
penalty for failure to remit a tradable unit to the Minister. Upon
conviction on indictment, a person is liable to “the prescribed fine,
if applicable, or to imprisonment for a term of not more than three years,
or to both”;
on summary conviction, a person is liable to “the prescribed fine,
if applicable, or to imprisonment for a term of not more than six months,
or to both.”

Clause 28 creates new section 277.1, which provides that all fines received
by the Receiver General in respect of the commission of an offence under
this Act or the execution of an order in relation to this Act shall be credited
to the Environmental Damages Fund. Contained within the accounts of
Canada, this fund is also the destination for fines collected under the Migratory
Birds Convention Act, 1994, as amended in 2005.

The federal cabinet is empowered to make regulations setting out the method
of calculating a fine relating to the failure to remit a tradable unit to
the Minister and the minimum and maximum amount payable for each such unit
(clause 29, adding new section 278.01 to
the Act).

9. Clauses
32-37 – Part 11, Miscellaneous Matters

Clause 33 amends the regulatory power of the federal Cabinet under sections
of the Act governing toxic substances, air quality, pollution control, waste
management (nutrients from cleaning products and water conditioners), fuels,
issues relating to international air pollution and international water pollution,
government operations, and federal and Aboriginal lands. Under the
amended section 326, Cabinet will be able to make regulations with respect
to:

a substance, a product that contains or may release a
substance into the environment or a work, undertaking, activity or
source in relation to which the system is established;

the methods and procedures for conducting the sampling, analyzing,
testing, measuring, monitoring or quantifying under the
system; [amendments emphasized]

Clause 34 amends section 330 by revising one subsection and adding another. Subsection
330(3.1) allows regulations to specify a limited geographical application.
This subsection is amended to permit the application of a regulation in
only a part or parts of Canada, including any province, in order
to achieve national consistency in environmental quality (amended
text emphasized).

Section 330 of the Act sets out a series of conditions for the exercise
of the regulatory power by Cabinet. New subsection 330(3.2) is added
by the bill to permit regulations made under specified sections(7)
to distinguish among persons, works, undertakings or activities according
to any factors that, in the opinion of the Governor in Council, will allow
for the making of a regulation that provides for satisfactory protection
of the environment or human life or health. Regulations including
these distinctions may concern: quantities of releases; production
capacity; technology or techniques used; and in the case of works or undertakings,
the date of commencement of their operation or the date on which any major
alterations are completed.

New subsection 330(3.3) states that nothing in Part 7 shall be construed
so as to prevent the making of regulations under Part 5 or 5.1 (concerning “Controlling
Toxic Substances” and “Climate Change Action,” respectively).

Clause 36 amends subsection 332(1) of the Act to require that the Minister
publish a copy of every proposed order, regulation or instrument under
the specified sections and subsections (new phrase emphasized). A
list of sections and subsections subject to this requirement is also included
in this clause. This subsection of CEPA 1999 currently requires all
orders and regulations to be published and lists three exceptions (interim
orders, amendments to the domestic substances list, and amendments to the
non-domestic substances list).

Clause 37 adds new subsection 333(2.1) to provide that where a person
or government files a notice of objection under subsection 332(2) with respect
to regulations proposed to be made under subsection 10(11), the Minister
may establish a board of review to inquire into the matter.

B. Part
2, Clauses 42-46: Amendments to the Energy Efficiency Act

1. Clauses
41.1 and 42 – Preamble and Interpretation

Clause 41.1 creates a preamble to the Energy Efficiency Act, specifying
that “the Government of Canada is committed to ensuring sustained
improvement in the efficient use of energy in all sectors of the Canadian
economy.”

Clause 42 adds a new subsection 2.1 to the interpretation part of the Energy Efficiency Act. The clause is intended to provide “greater
certainty” by adding a precise definition of the word “class” as
used in the Act. A “class” of energy-using products may be
defined by common energy-consuming characteristics, the intended use of the
products, or the conditions under which the products are normally used.

2. Clause
43 – Interprovincial Trade and Importation

In the current Energy Efficiency Act, paragraph 4(1)(a)
prohibits dealers from selling, leasing or shipping an energy-using product “from
the province in which it was manufactured to another province” without
meeting certain conditions. Clause 43 amends that paragraph by replacing
the quoted phrase with “from one province to another province.”
In addition, paragraph 4(1)(b) of the current Act, which requires
products or their packages to be labelled “in the prescribed form
and manner,” is amended to require labelling “in accordance
with the regulations.”

3. Clause
44 – Information Provided by Dealers

Clause 44 amends section 5 of the Act, which sets out the information that
must be provided by dealers who ship or import energy-using products. Under
the current subsection 5(1), dealers must “file” information
with the Minister in “a report setting out prescribed information
respecting the energy efficiency of those products.” Bill C-30
amends this wording to require that the information be “provide[d]
to” the Minister, and adds a requirement for information on the shipment
and importation of products.

Similar technical changes (from “file a report” to “provide
prescribed information”) are proposed for paragraphs 5(2)(a)
and (b), which provide exceptions to the information set out in
subsection 5(1). In addition, this clause allows in certain circumstances
for an exemption from the requirement to provide information related to
the energy efficiency of energy-using products, while leaving in place the
requirement for shipment and importation information. Clause 44 also
states that information does not have to be provided if the Minister is
satisfied that it has previously been provided, or that information has
been provided on comparable products that differ from the products in question “only
in a manner that does not relate to
energy efficiency.” The existing Act uses the phrase “does
not affect their energy efficiency” (emphasis added).

4. Clause
45 – Retention of Documents and Records

Clause 45 amends sections 7 and 8 of the Act, which deal with the records
and documents that dealers must keep, by making the same wording changes
as proposed in
clause 44 (replacing “to file a report” with “to provide
prescribed information”).

This clause makes two other minor wording changes. In the current
section 7,
the documents and records must enable the Minister to verify the
accuracy and completeness of the information. Under Bill C-30, they
must be sufficient for the Minister to do the verification. In
the existing section 8, documents and records must be kept for six years “after
the day on which the report was filed with the Minister.” Clause
45 changes this to six years “after the day on which the prescribed
information was provided to the Minister.”

5. Clause 46 – Regulations

Clause 46 amends paragraph 20(1)(a) of the Act, which sets out
the regulatory powers under the Act. Currently, the Governor in Council
may make regulations to prescribe as an energy-using product any manufactured
product designed to operate using electricity, oil, natural gas or any other
form or source of energy, or to be used as a door or window system. Clause
46 extends that regulatory authority to cover any manufactured product or class of
manufactured products. It also removes the reference to door and window
systems and replaces those words with “or that affects or controls
energy consumption.” These changes broaden the range of products
that may be regulated under the Act.

Paragraph 20(1)(b) of the English version of the Act is amended
by removing the word “prescribed” before “classes of energy-using
products” to bring it into accordance with the wording in the French
version of the Act.

Clause 46 also simplifies the language, while broadening the regulatory
authority of the Governor in Council, by amending paragraph 20(1)(c). At
present, this paragraph permits the making of regulations governing the
form and manner of labelling energy-using products or prescribed classes
of products, or their packages, with respect to their energy efficiency.
Clause 46 states simply that regulations may be made “respecting the
labelling of energy-using products or their packages, or classes of energy-using
products or their packages.” The restriction that the labelling
is “with respect to their energy efficiency” is removed.

Finally, new subsections 20(3) and (4) require that, within four years
of the day on which the subsections come into force, the Governor in Council
shall regulate energy efficiency standards for “all energy-using products
the use of which has a significant or an increasing impact on energy consumption
in Canada.” These regulations are to be made in consultation
with the provinces and territories, and the standards so established are
then to be reviewed at least once every three years, to ensure that they
are “at least equivalent to the levels set by the most stringent standards
applicable in other jurisdictions in North America.”

1. Clause 46.1 – Preamble

Clause 46.1 creates a preamble to the Motor Vehicle Fuel Consumption
Standards Act, stating that “the Government of Canada is committed
to a clean environment, healthy Canadians, and the reduction of domestic
greenhouse gas emissions” and also that “the Government of
Canada is committed to having fuel consumption standards that meet or
exceed international best practices.”

2. Clause 47 – Regulation

This clause replaces section 3 (Fuel consumption standards) of the Act,
which currently states that “The Governor in Council may, on the recommendation
of the Minister [of Transport] and the Minister of Natural Resources, make
regulations prescribing … a fuel consumption standard for any prescribed
class of motor vehicle for any year.” This is amended, as subsection
3(1), to require that the Governor in Council “shall” make regulations
prescribing such standards, without the need for recommendation by the Ministers. Standards
would have to meet or exceed international best practices.

In addition, a new subsection 3(2) clarifies that regulations made under
subsection 3(1) may prescribe a method of establishing the fuel consumption
standard,
using factors that vary from company to company. This clause enables
the introduction of a regulated fuel consumption standard that is a function
of company-specific variables such as vehicle sales or vehicle size.

Under new subsection 3(3), these regulations must be published within
one year of the section coming into force and must themselves come into
force at the expiry of the existing Memorandum of Understanding (MOU)
with the automotive industry (i.e., after
31 December 2010), if neither party terminates the MOU before this date.

Finally, new subsection 3(4) requires that, starting in 2011, the standards “shall
be benchmarked against leading standards in other jurisdictions considering
technical feasibility.”

3. Clause
48 – Regulations Design and Development

This clause replaces section 5 of the Act, which currently provides that
a fuel consumption standard is valid only if certain conditions are met,
with a requirement that the Ministers of Transport, Natural Resources, the
Environment and Industry “undertake a regulations design and development
exercise” with participants from “provinces and territories,
labour organizations, environmental organizations, companies and other interested
persons” before publishing a proposed regulation.

4. Clause
48.1 – Fuel Efficiency Labelling Scheme

Clause 48.1 creates new section 22.1, which requires the Governor in Council
to develop regulations “regarding a fuel efficiency labelling scheme
for motor vehicles.”

The regulations are to come into force within six months of the coming
into force of the new section, and must require that all vehicles intended
for sale in Canada “prominently display a verified fuel efficiency
rating,” including
a rating of performance relative to “the best and worst in its class
and best and worst overall.”

5. Clause 49 – Enforcement

This clause thoroughly amends section 24 of the Act to provide inspectors
with additional powers of enforcement. Notably, it adds subsections
that empower inspectors to search computer systems and, under specific conditions,
to enter a dwelling-place without the consent of its occupant if a warrant
has been issued to that effect.

6. Clause
50 – Disclosure of Privileged Information

Under the current subsection 27(2) of the Act, information obtained under
the Act may, for example, be disclosed “for the purposes of the administration
or enforcement of this Act, legal proceedings related thereto or criminal
proceedings under an Act of Parliament.” Clause 50 amends this
language to restrict disclosure by replacing the quoted phrase with “for the purposes of the administration or enforcement of this Act or
legal proceedings related
to it.”

The Motor Vehicle Fuel Consumption Standards Act is not in force. Clause
51 amends its section 39 to provide that this Act comes into force, in its
entirety, 30 days after
Bill C-30 receives Royal Assent.

D. Clause 52: Coming
Into Force of Bill C-30

Clause 52 states that both Part 1 and Part 2 of this Act (Bill C-30) will
come into force 30 days after the day on which it receives Royal Assent. (The
coming into force of Part 3 of this Act is covered in clause 51.)

Commentary

Bill C-30 was referred to the Legislative Committee on Bill C-30 (the “Committee”)
before the second-reading stage, essentially reflecting the fact that the
bill had not been approved in substance by the House of Commons. Under
the rules of parliamentary procedure, this meant that the Committee was
afforded greater latitude in amending the bill than would otherwise have
been the case.

As well, in a reflection of this Parliament’s minority status, opposition
party members outnumbered government members on the Committee. The
effect of this was that a united opposition was able to significantly redraft
the bill where there was majority support for any given proposed amendment. The
bill, therefore, had undergone considerable amendment by the Committee before
it was reported to the House of Commons on 30 March 2007. Indeed,
the changes made to the bill were so extensive that it has been described
as being “virtually unrecognizable from its original form.”(8)

The focus of the bill has been reoriented to emphasize action to fulfil
Canada’s international obligations to reduce greenhouse gas emissions. Canada
has made a commitment to reducing greenhouse gas emissions through the United
Nations Framework Convention on Climate Change and its binding agreement,
the Kyoto Protocol, which Canada signed in 1997 and ratified in 2002. Canada,
together with other parties to the Convention, agreed in the
Kyoto Protocol to reduce average greenhouse emissions in industrial countries
to 6% below 1990 levels between 2008 and 2012. Canadian government
data in 2004 revealed that Canada’s greenhouse gas emissions were
almost 27% above 1990 levels and were rising, not declining.

The 2006 Annual Report of the Commissioner of the Environment and Sustainable
Development was devoted to climate change programs. The press release
accompanying the report concluded: “It is increasingly clear
that Canada will not meet its international commitments to reduce greenhouse
gas emissions.”(9)

Bill C-30 as amended by the Committee enshrines the emissions reduction
targets set out in the Kyoto Protocol and introduces fixed amounts of permissible
greenhouse gas emissions for defined dates beyond 2012. It also makes
explicit references to climate change and the Kyoto Protocol targets in
amendments to the Preamble of the Canadian Environmental Protection
Act, 1999. The bill as it was originally drafted made no reference
to the Kyoto Protocol or its targets or timelines.

In conjunction with the first reading of Bill C-30, a Notice of intent
to develop and implement regulations and other measures to reduce air
emissions was
published on
21 October 2006. This Notice provided no firm limits on greenhouse
gas emissions before the year 2020. Rather, it called for intensity-based
targets, which require polluters to reduce the amount of emissions per unit
of production but do not limit total emissions.

Bill C-30 seeks to provide a plan for climate change action and to establish
air quality and air emissions standards. The main thrust of the amended
bill is to introduce into CEPA 1999 Part 5.1, entitled “Climate Change
Action,” and Part 5.2, entitled “Ambient Air Quality Standards
and Air Emissions Standards.” These new parts will come after
Part 5 of CEPA 1999. Part 5 is central to the Act and deals with the
control of certain toxic substances (listed in Schedule 1) after they have
been examined through a legislated assessment process.

The original Clause 18 of Bill C-30, which created the new Part 5.1 of
CEPA 1999,
was entirely replaced by the Committee with three new parts: 5.1,
5.1.1 (together related exclusively to greenhouse gas emissions) and 5.2
(Ambient Air Quality Standards and
Air Emissions Standards). As originally proposed (see appendix),
the bill would have removed substances associated with smog and greenhouse
gases from the current Schedule 1 of CEPA 1999 (List of Toxic Substances),
included them in new definitions of air pollutants and greenhouse gases,
and empowered Cabinet to regulate those substances under a new Part 5.1,
entitled “Clean Air.” The purpose of Part 5.1 would have
been to “promote the reduction of air pollution and to promote air
quality in order to protect the environment and the health of all Canadians,
especially that of the more vulnerable members of society.”

As revised by the Committee, the purpose of new Part 5.1 is now to “to
reduce Canada’s greenhouse gas emissions to below current and historical
levels in order to protect the environment and the well-being of all Canadians,
especially the vulnerable members of society and Canadians living in the
North.”

To this end, Part 5.1 introduces national, sectoral and individual “carbon
budgets” that would set increasingly strict limits on permissible
greenhouse gas emissions and require large industrial emitters to pay escalating
penalties into a new green fund (the “Green Investment Bank of Canada”)
if they are not able to meet these standards.

Companies would be able to access the funds they deposit into the fund
if they make technological improvements to reduce their emissions within
two years. If no such improvements made within that time, the funds
will be spent on other green schemes and “allocated in a manner that
maximizes verifiable GHG emission reductions.”

The bill also provides for mandatory regulations toward the creation of
a greenhouse gas emissions trading system that would require the issuing
and trading of transferable carbon permits for the release of any greenhouse
gas by large industrial emitters.

It further provides for regulations to support the creation of a domestic
offset system. Such a system would require the issuing and trading
of transferable carbon credits for incremental and verifiable annual greenhouse
gas emissions reductions, to be used to reduce the individual carbon deficit
of large industrial emitters.

The bill requires the Minister to prepare and table in Parliament an annual “Climate
Change Plan” detailing measures to be taken to ensure that Canada’s
domestic greenhouse gas emissions are equal to or less than the prescribed
national carbon budget.

Measures to be described include those respecting market-based mechanisms
such as emissions trading or offsets, spending or fiscal measures or incentives,
and a just transition for workers affected by greenhouse gas emission reductions.

Each Plan must also include the projected greenhouse gas emission level
in Canada for each year from 2013 to 2050, a comparison of those levels
with any international commitments and obligations that the government of
Canada may have undertaken, and an equitable distribution of greenhouse
gas emission reduction levels among the sectors of the economy that contribute
to greenhouse gas emissions.

Some interactions between the provisions of the proposed Part 5.1 and
the existing provisions of CEPA 1999 might lead to undesirable or unforeseen
effects. For example, as amended by Bill C-30, CEPA 1999 would explicitly
protect the well-being of the more vulnerable members of society, including
Canadians living in the North, from greenhouse gas emissions; however, the
same protection is not provided with respect to other toxic substances.

New Part 5.1.1 is entitled “Greenhouse Gases Territorial Approach.” Currently
the Governor in Council may declare that certain provisions of a regulation
do not apply in a region if there are provisions equivalent to a regulation
already in place, along with enforcement. The bill contains a similar
clause respecting equivalency provisions generally, presumably to facilitate
the development of equivalency agreements with the provinces. This
new Part would allow for a similar approach with respect to the reduction
of greenhouse gas emissions. Other clauses of Bill C-30 would likely permit
greater flexibility with regard to equivalency provisions generally, presumably
to facilitate the development of equivalency agreements with the provinces.

New Part 5.2 would include a number of clauses under the heading “Ambient
Air Quality Standards and Air Emissions Standards.” These clauses
oblige the Minister to divide Canada into geographic zones for the purpose
of setting and applying emissions standards for each air pollutant in each
zone and to issue such standards in respect of each air pollutant. The
standards are to be reviewed every five years to ensure their consistency
with best practices and international standards.

The Minister is also obliged to report annually to Parliament on air pollution
and air quality, including on whether emissions standards are being met
and the measures that are being or will be taken in order to meet the standards.

A number of statistics and objectives regarding ambient air quality are
currently reported on, or will be reported on, through processes that are
under development. National
Ambient Air Quality Objectives are currently developed under the auspices of
the National Advisory Committee Working Group on Air Quality Objectives and Guidelines,
which reports to the National Advisory Committee established under CEPA 1999. In
addition, Canada-wide standards have been developed by the Canadian Council
of Ministers of the Environment;
these are considered Environmental Quality Objectives under CEPA 1999. An
air quality indicator is also included in the set of Sustainable Development
Indicators recently established by Statistics Canada and Environment Canada,
and a health-based Air Quality Index is being developed by Health Canada. A
key difference between these current and planned efforts and the Ambient
Air Quality Standards and Air Emissions Standards proposed under Part 5.2
of Bill C-30 would be the legislated requirement to report.

The constitutionality of CEPA 1999 has been the subject of much discussion
since the Act’s passage. The legislative authority of the federal
and provincial/territorial governments is determined by the Canadian Constitution,
which does not assign jurisdiction over
the environment or environmental protection to either level of government. Under
the Constitution Act, 1867, some relevant matters are assigned
to each of the federal and provincial levels of government.(10) In
other areas, such as the protection of the environment, jurisdiction is
joint and responsibilities overlap.

Section 91 of the Constitution Act assigns various environment-related
heads of power to the federal level, including seacoast and inland fisheries,
navigation and shipping, international rivers, and relations with foreign
governments. Other
important grounds for federal jurisdiction lie with the federal power over
criminal law, the power to regulate trade
and commerce, and the residual peace, order and good government (“p.o.g.g.”)
power.
The p.o.g.g. power is found in the introductory words of section 91, “to
make Laws for the Peace, Order, and good Government of Canada, in relation
to all Matters not coming within the Classes of Subjects by this Act assigned
exclusively to the Legislatures of the Provinces … .” The
national concern branch of the p.o.g.g. power permits
the federal government to control pollution of air or water that extends
beyond the power of an individual province to control.(11)

In the leading Supreme Court of Canada case on the issue of constitutional
division of powers and environmental protection legislation, and specifically
CEPA,
the constitutionality of CEPA was narrowly upheld as a valid exercise of
the federal criminal law power. In R. v. Hydro-Québec,(12)
Justice LaForest found that although various other heads of power assigned
to the federal government might form the basis for valid environmental protection
legislation, CEPA was valid as an exercise of the criminal law power, and
therefore its provisions had to be tested against the specific characteristics
of that head of power.
He cautioned that Parliament’s plenary power over criminal law cannot
be employed colourably,(13)
thus invading areas of exclusively provincial legislative competence. Justice
LaForest also cautioned against an interpretation of the Constitution that
would prevent Parliament from exercising the leadership role expected of
it by the international community and its role in protecting the basic values
of Canadians regarding the environment through the instrumentality of the
criminal law power.

As originally drafted, Bill C-30 would have removed substances associated
with smog, smog precursors and greenhouse gases from the List of Toxic Substances,
Schedule 1 of CEPA 1999, and placed them in the list of definitions in the
Act as “air pollutants”
and “greenhouse gases” respectively. This raised concerns
that the federal government would lose the ability to regulate these substances
under the criminal law power, as they were no longer on the List of Toxic
Substances.

In the original draft of Bill C-30, clause 2 added a new recital to the
Preamble of CEPA 1999, to provide that the government recognizes that “air pollutants” [emphasis
added] and greenhouse gases pose “a risk to the environment and its biological
diversity, as well as to human health and are matters of national and international
concern which cannot be contained within geographic boundaries.” In
the revised bill, the thrust of the new recital was retained; however, the word “pollutants” was
amended to “pollution,” and the words “and are matters” were
deleted. In both the original and the revised text, the recognition of “national
and international concern” may signal the government’s intention
to strengthen the constitutional underpinnings of CEPA 1999 by linking the
provisions of the Act to heads of power other than the criminal law power.

The Committee added an additional recital explicitly recognizing that “air
pollution and greenhouse gases are matters within the jurisdiction of both
the Government of Canada and the governments of the provinces.”

The Committee amended Bill C-30’s changes to the Energy Efficiency
Act,
adding a recital to the Preamble stating that Canada is “committed
to ensuring sustained improvement in the efficient use of energy in all
sectors of the Canadian economy.” As well,
the Committee amended the bill to require the creation of regulations establishing
energy efficiency standards for all energy-using products that have a significant
impact on energy consumption. These standards are to be reviewed at
least every three years to ensure that they “are at least equivalent
to the levels set by the most stringent standards applicable in other jurisdictions
in North America.”

The Committee also amended Bill C-30’s changes to the Motor Vehicle
Fuel Consumption Standards Act. A recital to the Preamble
now states that “the Government of Canada is committed to a clean
environment, healthy Canadians, and the reduction of domestic greenhouse
gas emissions” and “is
committed to having fuel consumption standards that meet or exceed international
best practices.” The bill was amended to provide for the mandatory
creation of regulations relating to fuel consumption standards, to come
into force in 2011, and also for regulations for the establishment of mandatory
and fuel efficiency labels for vehicles.

Media Reaction

The proposed legislation has attracted substantial media attention, both
before its revision by the Legislative Committee and after. Among
commentators who do not support the Kyoto Protocol, reaction to the bill
as it was originally drafted was favourable. One editorial,
for example, characterized the bill as one that “takes us in the right
direction” in reducing emissions. It applauded the bill for
recognizing that the targets set under the Kyoto Protocol were “unrealistic” and
could not be met.(14)

Rather,
this bill presents long-term goals “that can be met.”(15)
Unsurprisingly, these commentators greeted the new version of Bill C-30
with less enthusiasm. The new pollution reduction targets and accompanying
penalties and fines were characterized as “unachievable, and nothing
other than a tax on the economic activity in Canada.”(16) An
editorial referred to it as the “Clean Red Tape Act,” noting
it created bureaucracies that could prove “onerous” in practice.(17)

Among commentators who support the Protocol, and Canada’s commitment
to it, reaction to the bill as originally proposed was critical. One
focus of media critique was the lengthy timetable: “There are
to be no major targets set for industry for several years.
Three years of consultations and planning are to begin to set more detailed
targets.
More consultations? Contrast this with the fact that a vast majority
of scientists say climate change is a dangerous problem that needs immediate
action. The time to consult is over.”(18)

Another focus of criticism was the intensity-based targets described in
the Notice
of intent to develop and implement regulations and other measures to reduce
air emissions published on 21 October 2006. One
commentator observed that under the proposed Clean Air Act, industry would
be required to reduce the amount of energy used per unit of production,
which would allow “GHG
emissions [to] keep on rising, but at a slower rate.”(19)

Thus, for those commentators who support fixed upper limits on emissions
and a commitment to Kyoto targets, the revised bill was characterized as
an improvement, and one that “sets stronger targets in the short,
medium and long term. It does more on energy efficiency and more on
smog.”(20)

Endnotes

* Notice: For clarity of
exposition, the legislative proposals set out in the bill described in this
Legislative Summary are stated as if they had already been adopted or were
in force. It is important to note, however, that bills may be amended
during their consideration by the House of Commons and Senate, and have
no force or effect unless and until they are passed by both Houses of Parliament,
receive Royal Assent, and come into force.

** Bill C-30 was amended extensively by the House
of Commons Legislative Committee on Bill C-30. Because the effect
of those amendments was effectively to re-write the bill, and for clarity,
changes to this document are not indicated in bold print.

Canadian Environmental Protection Act, 1999,
c. 33.

Energy Efficiency Act, 1992, c. 36.

Motor Vehicle Fuel Consumption Standards Act,
R.S. 1985, c. M-9.

Generally, offsets are verified greenhouse
gas reductions achieved by persons outside of the large industrial emitter
trading system (e.g., agriculture) that can then be purchased by large
industrial emitters in lieu of actual emission reductions.

The term “hot air” refers to greenhouse
gas emission reductions that resulted from the economic collapse of old
East Bloc countries and are available for trading under the Kyoto Protocol.

A substance specified on the List of Toxic Substances
in Schedule 1 of the Canadian Environmental Protection Act, 1999.

Note that, as reported from committee, this
clause would create a reference to a non-existent
subsection 103.09(2), which had been proposed in an earlier version of the
Bill.

“Clean Air Act totally revamped; Whether
Conservatives accept changes or use them to trigger election speculated,” The Record [Kitchener,
Cambridge and Waterloo], 28 March 2007, p. A3.

Appendix

Description and Analysis of Clause 18
of
the First-Reading
Version of Bill C-30 –
New Part 5.1, “Clean
Air”*

Clause 18 introduces a substantive amendment to the Act through its addition
of the new Part 5.1, sections 103.1-103.15, entitled “Clean Air.”

The purpose of this part of the Act is stated in new section 103.01: “to
promote the reduction of air pollution and to promote air quality in order
to protect the environment and the health of all Canadians, especially that
of the more vulnerable members of society.”

General provisions for the formulation of guidelines and consultation
are set out in proposed new section 103.02. This section repeats the
text of other sections of the current Act, with the words “assessing
and controlling air pollutants or greenhouse gases” substituted for “the
quality of the environment,” as found in subsection 47(2), for example.(1)

Similarly, proposed new section 103.03, which permits the Minister of
the Environment to conduct research, investigation and evaluation of the
substances that will be dealt with under this new Part, substantially reproduces
the text of section 68 of the Act and is revised to read “contributes
to air pollution or is capable of contributing to air pollution,”“air
pollutant” and “greenhouse gas” instead of similar
wording relating to whether the substances are “toxic.” Proposed
new section 103.04 contains similar revisions based on the text of section
70 of the Act concerning the circumstances under which notice must be given
to
the Minister.

Proposed new section 103.05 concerns the assessment of whether a substance
should be addressed under the provisions of Part 5.1, i.e., the assessment
of whether a substance, including an air pollutant or a greenhouse gas,
contributes to or is capable of contributing to air pollution, or whether
and how to control it. It addresses notices requiring information,
samples or testing and sets out the contents of such a notice. Here
again the text of sections of the existing Act(2)
is reproduced, edited to reflect this Part’s focus on air-polluting
substances or products that contain or may release those substances into
the air.

Subsections (3) through (7) of proposed new section 103.05 set out information
relating to the content of the notice, compliance information, and the extension
of time for compliance with the notice. These are similar to provisions
found elsewhere in the Act. (3)

It is worth noting, however, that under this proposed new section any
person required to provide either Minister with information must then keep
that information for seven years. This period is
four years longer than the similar provision under existing subsection 46(8).

Proposed new section 103.07 concerns “National Air Quality Objectives
for Respirable Particulate Matter and Ozone.” This is the section
of the proposed legislation that is specifically intended to address smog.

This section obliges the Ministers to issue air quality objectives with
respect to respirable particulate matter less than or equal to 10 microns,
and to ozone, within three years of the section’s coming into force. In
addition, the Ministers must monitor the attainment of those objectives
and assess the effectiveness of measures taken by governments to attain
them.

In carrying out their duties regarding air quality objectives, the Ministers
must offer to consult with provincial governments and the members of the
National Advisory Committee (established under section 6 of the Act) who
are representatives of Aboriginal governments, and may also consult with
other agencies, departments or persons (proposed new subsection 103.07(3)). If
this offer is not accepted by the other entities they consult,
the Ministers may act any time after the 60th day from the date on which
the offer to consult was made. The Ministers must publish any objectives
issued under this section. These provisions are consistent with other
provisions found elsewhere in the Act.(4)

The Ministers are required to table an annual report to Parliament on
air pollution or air quality. This report must address the attainment
of the air quality objectives set out in proposed subsection 103.07(1),
as well as the effectiveness of measures taken by governments to achieve
those objectives, and measures the Ministers will take to assist in achieving
them.

In addition, the Minister of the Environment must publish projections
of
air pollution or air quality for any period that the Minister considers
appropriate (proposed section 103.08).

Proposed section 103.09 concerns regulatory matters. The federal
Cabinet may make regulations prescribing a substance as an air pollutant
or a greenhouse gas if it is satisfied that the substance contributes to,
or is capable of contributing to, air pollution.
Further, the federal Cabinet may make regulations concerning any air pollutants
or greenhouse gases under subsection 103.09(2). These regulations
could include, for example:

the quantity or concentration
of air pollutants or greenhouse gases that may be released into the air
either alone or in combination with any other substance from any source
or type of source;

the commercial, manufacturing or processing activity
in the course of which air pollutants or greenhouse gases may be released
into the air;

the manner in which and conditions under which air pollutants
or greenhouse gases may be released into the air either alone or in combination
with any other substance; […]

the quantities or concentrations of air pollutants
or greenhouse gases that may be imported, exported, manufactured, processed,
used or sold; […]

the packaging and labelling of air pollutants or
greenhouse gases or a product that contains or may release either into the
air.

Before making regulations under proposed subsection 103.09(2), the Ministers
must give the National Advisory Committee an opportunity to advise the Ministers. As
well,
if a matter is already regulated under another Act of Parliament in a manner
that provides sufficient protection to air quality and human health, the
federal cabinet is prevented from making a regulation under this section.

When enacting regulations under this section, the federal Cabinet or Ministers
are directed to consider several factors, including the importance of promoting
the continued improvement of air quality, air quality objectives or guidelines,
and Canada’s international obligations in relation to
the environment and human health (new text emphasized).
This last-mentioned factor would include considering the United Nations
Framework Convention on Climate Change and its binding agreement, the Kyoto
Protocol, which Canada signed in 1997 and ratified in 2002.

If the federal Cabinet is satisfied that the inclusion of a substance
listed in Schedule 3.1 (the List of Excluded Volatile Organic Compounds)
is no longer necessary, it may, on the recommendation of the Ministers,
make an order deleting it from that Schedule (proposed subsection 103.09(6)).

The Ministers’ powers with respect to the subject, content, effect,
duration
and lapse of interim orders under Part 5.1 are set out in proposed new subsections
103.1(1) through (6). These subsections are similar to other parts
of the Act that address interim orders, but are tailored to reflect orders
concerning substances that contribute to or can contribute to air pollution,
air pollutants or greenhouse gases.(5) Interim
orders may be made where the Ministers believe that immediate action is
required to deal with a significant danger to the environment or to human
life or health.

Proposed new section 103.11 addresses the release of air pollutants or
greenhouse gases, as well as remedial measures taken in response to such
a release. This
section substantially reproduces the text of section 212 of CEPA 1999 (“Release
of Substances”),
but is modified to replace the words “into the environment” with “into
the air.”

Where such a release occurs or is likely to occur, any person who has
the charge, management or control of a substance before its release must,
as soon as possible, notify an enforcement officer or other designated authority
and any other person who may be adversely affected by the release, and must
take all reasonable measures to prevent or stop the release.
Where a person fails to take the required measures, an enforcement officer
may intervene,
and may have access to property where the release is located in order to
take reasonable action (proposed subsections 103.11(1) to (6)). Anyone
who is not responsible for the release but who, acting in good faith, provides
assistance or advice in taking measures to prevent or stop the release is
not personally liable in either civil or criminal law (proposed subsection
103.11(7)).

Proposed new section 103.12 concerns voluntary reports, requests for confidentiality
and employee protection. Persons who are not required under the Act
to report the occurrence or likelihood of a release of an air pollutant
or greenhouse gas may nevertheless make such a report, and may request that
their identity and any information that might reasonably disclose their
identity not be released. Employers may not dismiss, suspend, demote,
discipline, harass or otherwise disadvantage an employee, or deny an employee
a benefit of employment, by reason that the employee: reported the
occurrence or likelihood of a release of an air pollutant or a greenhouse
gas; refused or stated an intention of refusing to do anything that is an
offence under this Act; or has (in good faith) done or stated an intention
of doing anything that is required to be done by or under this Act. Again,
these provisions substantially mirror similar provisions elsewhere in the
Act.(6)

Proposed new section 101.13 permits the federal Cabinet to make regulations
to carry out the purposes and provisions of sections 103.11 and 103.12.

Proposed new section 103.14 permits the government (the Queen in right
of Canada) to recover the reasonable costs and expenses of taking measures
under proposed subsection 103.11(4) – that is, where an enforcement
officer intervenes to prevent the release or likelihood of release of an
air pollutant or greenhouse gas in contravention of a regulation or order
under the Act. This section also sets out procedural matters concerning
the exercise of this power.

Proposed new section 103.15 sets out powers of the Minister of the Environment
to take remedial measures in light of a contravention of proposed new Part
5.1 of the Act or regulations made under this Part. Where the Act
is contravened in respect of an air pollutant or greenhouse gas, or a product
that contains or may release either into the air, the Minister may direct
anyone dealing with the substance or product to: give public notice
of any danger posed; replace the substance or product with something less
dangerous; or take other necessary measures to protect the environment or
human life or health.

These remedial measures are identical with those in section 99 of the
Act concerning releases of toxic substances, but are tailored to refer to
an “air
pollutant or greenhouse gas, or a product that contains or may release either
into the air” instead of
“a substance or a product containing a substance.”

Endnotes
(Appendix)

* Although this clause is written as
if it has been adopted, it was completely replaced by the House of Commons
Legislative Committee.